Thurston and Loomis (No. 2) - [2017] FamCA 741

FAMILY COURT OF AUSTRALIA

THURSTON & LOOMIS (NO. 2)

[2017] FamCA 741

FAMILY LAW – EVIDENCE – Subpoena – Where the Husband is granted leave to use documents produced to this Court pursuant to subpoena in Magistrates Court proceedings –Where the remaining orders sought by both parties are dismissed.
Family Law Act 1975 (Cth)

APPLICANT:

Ms Thurston

RESPONDENT:

Mr Loomis

FILE NUMBER:

BRC

1010

2012

DATE DELIVERED:

22 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

19 September 2017

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

That the husband be given leave to use documents produced to this Court pursuant to subpoena by the Queensland Police Service as might be determined appropriate according to law by the Magistrate in any proceedings brought against the husband by the wife in which she seeks family violence protection orders in the Magistrates Court.
That all applications for orders contained in the Wife’s Application in a Case filed 22 June 2017 and in her Response to an Application in a Case filed 12 September 2017 are dismissed.
That all other applications for orders contained in the Husband’s Amended Application in a Case filed 15 August 2017 and in his Response to an Application in a Case filed 12 September 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thurston & Loomis (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1010 of 2012

Ms Thurston

Applicant

And

Mr Loomis

Respondent

REASONS FOR JUDGMENT

Before me for determination are various applications for orders in these proceedings between the husband, Mr Loomis, and the wife, Ms Thurston. The substantive proceedings are for property settlement and child support departure. Parenting proceedings in the Federal Circuit Court (“the FCC”) between the parties were concluded a few years ago, with orders being made providing for their only child to live with the mother and spend regular time with the father.
A trial of the competing property and child support applications was heard by me in late 2015. After that trial concluded, I determined that before final judgment could be delivered that the parties’ self-managed superannuation fund needed to be put back into compliant status in so far as that was possible to be achieved, with the assistance of a Court appointed expert. That was achieved last year and funds approaching $600,000 are now held on behalf of the parties’ Superannuation fund by the solicitor who used…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thurston and Loomis (No. 2)

Details

AGLC: Thurston and Loomis (No. 2) [2017] FamCA 741
Case: [2017] FamCA 741
Decision Date: 22 September 2017

CaseChat Overview and Summary

In *Thurston and Loomis (No. 2)*, Forrest J of the Federal Circuit Court of Australia considered applications made by both the husband and wife. The wife sought family violence protection orders, while the husband sought various other orders. The dispute involved the use of documents produced to the court by the Queensland Police Service pursuant to subpoena.

The primary legal issues before the court were whether the husband should be granted leave to use the subpoenaed documents in family violence protection order proceedings in the Magistrates Court, and the determination of the various applications made by both parties concerning their respective claims for orders.

Forrest J reasoned that the husband should be granted leave to use the subpoenaed documents in the Magistrates Court proceedings, subject to the Magistrate's determination of their appropriateness according to law. This suggests a balancing of the need for disclosure in family violence proceedings against any potential prejudice or impropriety in their use. The court then dismissed all applications for orders made by the wife, as well as all other applications for orders made by the husband, indicating that neither party was successful in obtaining the substantive orders they sought beyond the limited leave granted for document use.

Orders

Orders of the court

That the husband be given leave to use documents produced to this Court pursuant to subpoena by the Queensland Police Service as might be determined appropriate according to law by the Magistrate in any proceedings brought against the husband by the wife in which she seeks family violence protection orders in the Magistrates Court.

That all applications for orders contained in the Wife’s Application in a Case filed 22 June 2017 and in her Response to an Application in a Case filed 12 September 2017 are dismissed.

That all other applications for orders contained in the Husband’s Amended Application in a Case filed 15 August 2017 and in his Response to an Application in a Case filed 12 September 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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